The Burger Court and the Rise of the Judicial Right Introduction A Counterrevolution Reclaimed On September 17, 1987, an extravagant celebration took place in Philadelphia to mark the bicentennial of the United States Constitution. A quarter of a million people lined the route for a parade that included a forty-foot replica of a parchment scroll: the Constitution deified. At 4:00 p.m., the hour at which the delegates to the Constitutional Convention had signed the document two hundred years earlier, a man stepped forward to ring a replica of the Liberty Bell. His abundant mane of white hair made him instantly recognizable. It was Warren E. Burger, the retired chief justice of the United States, who had ended his seventeen-year tenure a year earlier for the purpose of presiding over this very observance—which, as it happened, fell on his eightieth birthday.

Burger addressed the crowd: “If we remain on course, keeping faith with the vision of the Founders, with freedom under ordered liberty, we will have done our part to see that the great new idea of government by consent—by We the People—remains in place.”1

Burger’s call to keep faith with the Founders reflected one vision of the project they had launched with their “great new idea.” But it was not the only vision. Four months earlier, Justice Thurgood Marshall, who still sat on the Supreme Court, had offered a far more sober take on the meaning of the bicentennial in a speech to a bar group meeting on the Hawaiian island of Maui.

Marshall, the aging hero of the legal campaign to end racial segregation, and the first African American to sit on the Supreme Court, advised his audience to be wary of the “flagwaving fervor” surrounding the bicentennial. “The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the ‘more perfect Union’ it is said we now enjoy,” Marshall said, adding: “I cannot accept this invitation.” The government the Framers devised, he explained, “was defective from the start, requiring several amendments, a civil war, and momentous social transformation” to better realize the promise of a more just society. Credit for the Constitution in its present meaning belonged not to the Framers, Marshall concluded, but “to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality’ and who strived to better them.”2

The competition between these two narratives is in many ways the subject of this book.

From his appointment by President Dwight D. Eisenhower in 1953 until his retirement in the opening months of the Nixon administration in 1969, Chief Justice Earl Warren presided over a revolution in constitutional meaning. Official segregation by race came to an end. Criminal defendants acquired enforceable rights against compelled self-incrimination and illegally seized evidence. The political dominance that rural America held over the nation’s legislatures was ended by the new jurisprudence of one person, one vote. Organized prayer was ejected from public school classrooms.

The Warren Court’s overarching theme was equality. Reviewing his tenure, the chief justice told reporters that his Court’s three most important decisions were the reapportionment ruling (Baker v. Carr), the desegregation decision (Brown v. Board of Education), and the decision requiring that a lawyer be provided to any defendant facing a serious criminal charge who could not afford to hire one (Gideon v. Wainwright).3 All three were in the service of greater equality.

The Court’s activism produced public backlash. “Impeach Earl Warren” signs dotted lawns across the South—and elsewhere—for years before the Chief Justice retired in 1969. A sizable portion of the public attributed rising crime rates to judicial leniency. At the start of the 1968 election year, 63 percent told the Gallup Poll that courts were too soft on criminals, up from 48 percent three years earlier.4 A few months later, the Louis Harris poll reported that 81 percent of voters agreed with the statement that “law and order has broken down in this country.” Only 14 percent disagreed.5 Certainly, not all these uneasy voters saw the Supreme Court as the primary source of crime in the streets—there were, after all, riots in cities across the country—but the poll reflected a widespread sense of vulnerability among the law-abiding public.

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The Burger Court and the Rise of the Judicial Right Introduction A Counterrevolution Reclaimed On September 17, 1987, an extravagant celebration took place in Philadelphia to mark the bicentennial of the United States Constitution. A quarter of a million people lined the route for a parade that included a forty-foot replica of a parchment scroll: the Constitution deified. At 4:00 p.m., the hour at which the delegates to the Constitutional Convention had signed the document two hundred years earlier, a man stepped forward to ring a replica of the Liberty Bell. His abundant mane of white hair made him instantly recognizable. It was Warren E. Burger, the retired chief justice of the United States, who had ended his seventeen-year tenure a year earlier for the purpose of presiding over this very observance—which, as it happened, fell on his eightieth birthday.

Burger addressed the crowd: “If we remain on course, keeping faith with the vision of the Founders, with freedom under ordered liberty, we will have done our part to see that the great new idea of government by consent—by We the People—remains in place.”1

Burger’s call to keep faith with the Founders reflected one vision of the project they had launched with their “great new idea.” But it was not the only vision. Four months earlier, Justice Thurgood Marshall, who still sat on the Supreme Court, had offered a far more sober take on the meaning of the bicentennial in a speech to a bar group meeting on the Hawaiian island of Maui.

Marshall, the aging hero of the legal campaign to end racial segregation, and the first African American to sit on the Supreme Court, advised his audience to be wary of the “flagwaving fervor” surrounding the bicentennial. “The focus of this celebration invites a complacent belief that the vision of those who debated and compromised in Philadelphia yielded the ‘more perfect Union’ it is said we now enjoy,” Marshall said, adding: “I cannot accept this invitation.” The government the Framers devised, he explained, “was defective from the start, requiring several amendments, a civil war, and momentous social transformation” to better realize the promise of a more just society. Credit for the Constitution in its present meaning belonged not to the Framers, Marshall concluded, but “to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality’ and who strived to better them.”2

The competition between these two narratives is in many ways the subject of this book.

From his appointment by President Dwight D. Eisenhower in 1953 until his retirement in the opening months of the Nixon administration in 1969, Chief Justice Earl Warren presided over a revolution in constitutional meaning. Official segregation by race came to an end. Criminal defendants acquired enforceable rights against compelled self-incrimination and illegally seized evidence. The political dominance that rural America held over the nation’s legislatures was ended by the new jurisprudence of one person, one vote. Organized prayer was ejected from public school classrooms.

The Warren Court’s overarching theme was equality. Reviewing his tenure, the chief justice told reporters that his Court’s three most important decisions were the reapportionment ruling (Baker v. Carr), the desegregation decision (Brown v. Board of Education), and the decision requiring that a lawyer be provided to any defendant facing a serious criminal charge who could not afford to hire one (Gideon v. Wainwright).3 All three were in the service of greater equality.

The Court’s activism produced public backlash. “Impeach Earl Warren” signs dotted lawns across the South—and elsewhere—for years before the Chief Justice retired in 1969. A sizable portion of the public attributed rising crime rates to judicial leniency. At the start of the 1968 election year, 63 percent told the Gallup Poll that courts were too soft on criminals, up from 48 percent three years earlier.4 A few months later, the Louis Harris poll reported that 81 percent of voters agreed with the statement that “law and order has broken down in this country.” Only 14 percent disagreed.5 Certainly, not all these uneasy voters saw the Supreme Court as the primary source of crime in the streets—there were, after all, riots in cities across the country—but the poll reflected a widespread sense of vulnerability among the law-abiding public.

The Burger Court and the Rise of the Judicial Right

A revelatory look at the Warren Burger Supreme Court finds that it was not moderate or transitional, but conservative—and it shaped today’s constitutional landscape. It is an “important book…a powerful corrective to the standard narrative of the Burger Court” (The New York Times Book Review).

When Richard Nixon campaigned for the presidency in 1968 he promised to change the Supreme Court. With four appointments to the court, including Warren E. Burger as the chief justice, he did just that. In 1969, the Burger Court succeeded the famously liberal Warren Court, which had significantly expanded civil liberties and was despised by conservatives across the country.

The Burger Court is often described as a “transitional” court between the Warren Court and the Rehnquist and Roberts Courts, a court where little of importance happened. But as this “landmark new book” (The Christian Science Monitor) shows, the Burger Court veered well to the right in such areas as criminal law, race, and corporate power. Authors Graetz and Greenhouse excavate the roots of the most significant Burger Court decisions and in “elegant, illuminating arguments” (The Washington Post) show how their legacy affects us today.

“Timely and engaging” (Richmond Times-Dispatch), The Burger Court and the Rise of the Judicial Right draws on the personal papers of the justices as well as other archives to provide “the best kind of legal history: cogent, relevant, and timely” (Publishers Weekly).

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Praise

“A powerful corrective to the standard narrative of the Burger court . . . should change the way that period is perceived. . . . As this important book makes clear, courts, given time, can accomplish—or demolish—a great deal by degrees, leaving their successors to finish the job.”

“A powerful corrective to the standard narrative of the Burger court . . . should change the way that period is perceived. . . . As this important book makes clear, courts, given time, can accomplish—or demolish—a great deal by degrees, leaving their successors to finish the job.”

– Jeff Shesol, The New York Times Book Review

"Ambitious and engaging. . . . Graetz and Greenhouse's work serves as an important corrective, demonstrating that the Burger court demands far more sustained scrutiny and analysis than legal scholarship has generally afforded it. Readers interested in the Supreme Court’s role in American society during the second half of the 20th century will gather significant insight from this book’s elegant, illuminating arguments."

– Justin Driver, The Washington Post

“When the Supreme Court unanimously ruled against President Nixon in the famous 1974 Watergate Tapes Case that doomed his presidency, Nixon cursed the justices he had appointed. The myth grew that Nixon had failed to significantly move the Court to right. In their compelling, elegantly written analysis, two brilliant legal scholars (and clear-eyed explainers) convincingly demolish that myth.”

– Evan Thomas, author of Being Nixon

"[A] landmark new book. . . . Thrillingly intelligent analysis of the ways the Burger Court handled the massive legacy it was handed by the Warren Court. . . .Graetz and Greenhouse are tough but even-handed, dealing equally in personalities and precedents and creating some energetic reading along the way."

– Steve Donoghue, Christian Science Monitor

“In this fresh and often surprising return to the Burger Court years, Graetz and Greenhouse show how that court, generally dismissed for failing to reverse the liberal arc of the Warren Court era, embedded significant conservative markers in areas of the law critical to consumers, women, prisoners, business, voters and others. Using the justices’ papers and their own deep understanding of the Supreme Court, the authors bring to life the complex personalities and internal struggles of the Burger Court in a changing nation. And, they offer the reader an accessible bridge from the outcomes of those struggles to landmark rulings in the Rehnquist and Roberts Courts. This illuminating trip through history is well worth taking.”

– Marcia Coyle, Chief Washington Correspondent, The National Law Journal, and author of The Roberts Court: The Struggle for the Constitution

"This is the best kind of legal history: cogent, relevant, and timely, given the focus on the Court’s role and power after the death of Justice Scalia."

– Publishers Weekly

"Timely and engaging, Graetz and Greenhouse’s study provides a richly detailed look at the high court’s jurisprudence on the most heated issues of the past half-century. Even readers who follow the court’s work closely will find revelatory reporting."

– Jay Strafford, Richmond Times-Dispatch

“This revelatory book resets how we think about the Constitution and the Supreme Court that interprets it. The Court led by Chief Justice Warren Burger is often seen as an afterthought, wedged between the Warren Court and the hard right Justices today. In fact the 1970s and 1980s set the pattern for decades of American life, on topics from campaign finance to presidential power to criminal law. With clarity and insight, Michael Graetz and Linda Greenhouse show how the often jumbled doctrines of that time helped produce the America of today.”

– Michael Waldman, President, Brennan Center for Justice at NYU School of Law and author of The Fight to Vote

“An insightful and well-researched examination of the Burger Court."

– Library Journal (starred review)

“In The Burger Court and the Rise of the Judicial Right, Graetz and Greenhouse offer an insightful and intimate view of life and law behind the scenes in the Burger Court. By exploring the debates among the justices on such fundamental issues as women’s rights, abortion, the death penalty, religion, and racial equality, they offer exciting new perspectives on the interactions of the justices and the evolution of the law in the Court that was created by Richard Nixon.”

– Geoffrey Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago, and chief editor the Inalienable Rights series

“With crisp intelligence and notable fairness, The Burger Court and the Rise of the Judicial Right shows how quickly and profoundly politics can reshape the law of the land. The appointment of four conservative justices in the Nixon years led the Court to gut landmark rulings, empowering the judicial right in ways that still reign. Michael Graetz and Linda Greenhouse have written an engrossing and excellent book that will lead Court-watchers to think in importantly different terms about the Burger Court. The book also makes clear why, with openings expected soon on the current Court, it should be a paramount concern in the 2016 elections.”

– Lincoln Caplan, Senior Research Scholar, Yale Law School, and author of The Tenth Justice: The Solicitor General and the Rule of Law

“With remarkable skill, Michael Graetz and Linda Greenhouse show how the Burger Court eroded the equality that underlay almost all the work of the Warren Court. They make a compelling case that it provided the vital seedbed that enabled the judicial right of the Rehnquist and Roberts eras to flower. This extraordinary book will engage everyone who cares about the contemporary Supreme Court and its history.”

“Michael Graetz and Linda Greenhouse’s wonderful book on the Burger Court is the best survey and analysis that I have seen of the actions and implications of the decisions of that Court. It will be indispensable for scholars as well as ordinary citizens interested in the political and constitutional history of that fraught period of time. It was a fascinating Court and worthy of close attention and analysis. The authors have done it justice.”

– John Ferejohn, Samuel Tilden Professor of Law, NYU Law School

Read an Excerpt

The Burger Court and the Rise of the Judicial Right

By Michael J. Graetz and Linda Greenhouse

Excerpts

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About the Authors

Michael J. Graetz is a Professor of Law at Columbia Law School and the Justus S. Hotchkiss Professor of Law Emeritus at Yale University. He has previously published seven books and many articles on a wide range of public policy issues. He also served in important policy positions at the Treasury Department and was a John Simon Guggenheim Memorial Fellow and a fellow of the American Academy of Arts and Sciences.

Linda Greenhouse, recipient of the Pulitzer Prize and other major journalism awards, covered the Supreme Court for The New York Times for nearly thirty years. Since 2009, she has taught at Yale Law School and written a biweekly op-ed column on the Court as a contributing writer for the Times. She is a graduate of Radcliffe College, Harvard, and earned a master of studies in law degree from Yale Law School. This is her fourth book about the Supreme Court.